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The 2003 Iraq War and International Law

  • 4 Pages
  • Published On: 18-12-2023
5. Was the 2003 US-led military intervention in Iraq a legitimate exercise in the maintenance of international peace and security?

The United Nations Charter incorporates important provisions that are related to the maintenance international peace and security, which are based on the principles of non-use of force, non-intervention, and the powers given to the Security Council in Chapters VI and VII to take steps to maintain international peace and security and to prevent states from taking unilateral steps in this context. The question of whether the 2003 US-led military intervention in Iraq a legitimate exercise in the maintenance of international peace and security can be answered in the negative based on the principles enshrined in the UN Charter as well as the international law on non-use of force and non-intervention as well as self-defence.

The American led intervention in Iraq in 2003 was precipitated by the claims of development of weapons of mass destruction under Saddam Hussein's regime; this was the justification given by the United States, the United Kingdom and Australia where they contended that such development was in conflict with the Security Council Resolution 1441 of November 8, 2002 (Morris & Wheeler, 2007). The Security Council did not however authorise use of force or intervention in Iraq on the ground that Resolution 1441 did not provide authority for the use of force unless authorised by the Security Council (Morris & Wheeler, 2007). However, the intervention in Iraq was carried through by US, UK and Australia on the ground that Security Council's authorisation to use force against Iraq for its invasion of Kuwait in 1990 continued to provide legality for the use of force in 2003 (Morris & Wheeler, 2007).

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The principle of non-use of force is enshrined in UN Charter in Article 2(4) of the UN Charter; it makes it a duty for states to refrain from threat or use of force against the territorial integrity or political independence of any other state. The 1970 Declaration of Principles in International Law clarifies the interpretation of Article 2(4) of the UN Charter (General Assembly (Resolution 26/25 (XXV)) 1970 Declaration of Principles in International Law (24 October 1970). Thus, use of force includes wars of aggression, crimes against peace, reprisals, and organising, instigating assisting or participating in a civil war. The principle of non-intervention is provided in Article 2(7) and it says that states have no authority to intervene in the matters within the domestic jurisdiction of any State. The principle of non-intervention is considered to be part of the ‘Grotian’ model comprising equality, territorial sovereignty and independence of states (Cassese, 2005, p. 53). In Nicaragua v United States of America, the ICJ observed that the customary law principle of non-intervention may be trespassed under certain conditions. The principle of non-intervention is considered to be implicit in the UN Charter (Brown, 2012, p. 64).

Therefore, the legitimacy of the American intervention in Iraq will be considered on the basis of whether these principles were violated by them in their war against Iraq in 2003. It is also to be noted that the entire regime governing use of force in international law is not underpinned by two important principles, which are that the individual use of force is not permitted other than for self-defence in the face of actual or imminent attack and that the Security Council is the body that has the responsibility to determine whether there exists a ‘threat to international peace and security’ under Article 39 and then to authorise the collective use of force to uphold ‘international peace and security’ under Article 42 (Morris & Wheeler, 2007). In this case, the question of legitimacy of the Iraq intervention will therefore depend on whether the intervention was on the ground of self-defence; this would require establishment of actual and imminent attack by Iraq as the basis for any justification for self-defence. In this case, while there was not an actual armed attack by Iraq, the United States took the line of ‘pre-emptive self-defence’ to argue that the development of WMD poses threat to the western nations from Iraq. Pre-emptive self-defence was the justification taken in the Caroline case by the British for using force against a merchant vessel Caroline, in control of Canadian rebels in attacks against Canada (Jennings, 1938). At the time, right of pre-emptive self-defence was considered to be justified if in response to an actual or imminent armed attack, where it was necessary to take such action and there were no other choice of means and no moment for deliberation (Jennings, 1938). Nevertheless, eventually the justification of pre-emptive self-defence was not taken because such an actual or imminent attack could not be established (Murphy, 2003 ).

SC Resolution 1373 (2001) clearly notes that there is an ‘inherent right of individual or collective self-defence as recognised by the Charter of the United Nations’. Article 51 provides the principle of self-defence by noting that states have the inherent right of individual or collective self-defence in response to an armed attack until the Security Council has taken measures necessary to maintain international peace and security. Article 51 therefore allows states to take self-defence measures in response to an armed attack and when such measures are taken they are to be reported to the Security Council, which shall have the authority and responsibility to take such action as it deems necessary in order to maintain or restore international peace and security. In this case, such line could not be taken by the coalition partners, so instead they took the argument that the intervention in Iraq was justified because Iraq was in breach of Security Council resolutions made in the aftermath of invasion of Kuwait in 1990 and therefore, this continued to provide legality for the use of force in 2003 (Morris & Wheeler, 2007). In particular, it was the Resolution 678 of the Security Council (1990), which was used by them to justify the action. It has been argued that such interpretation of the Resolution 678 is not tenable because the drafting of the resolution was itself done in the way that an interpretation that holds that the authorisation of force against Iraq was perpetual in nature would be incorrect and untenable (Murphy, 2003 ). This view is strengthened by the fact that the majority of the Security Council did not subscribe to the argument that the Resolution 678 could be used to take action against Iraq; in effect this means that the Security Council did not authorise the action against Iraq (Ramirez, 2003). This in itself takes from the legitimacy of the action because it was not authorised by the Security Council; on the contrary it was taken in spite of the Security Council refusing to accept the argument that the Resolution 678 of the Security Council did not authorise perpetual right of action against Iraq.

For the American led intervention in Iraq to be legitimate, it should have been in response to an imminent armed attack by Iraq and whatever measures were taken were to be informed to the Security Council, which would then take further action to restore the peace and security. This is not what happened in this case. Indeed, the argument that it was a pre-emptive self-defence was not pursued by the coalition (Murphy, 2003 ). In absence of this justification, legitimacy could have been acquired had this action been authorised by the Security Council. It is the Security Council upon whom the collective security system rests and it is this body that has the “primary responsibility for the maintenance of international peace and security according to the UN Charter, Article 24. When American led 2003 intervention against Iraq was carried out, it was against the principles of the UN Charter and bypassing the powers of the Security Council to maintain peace and security (Morris & Wheeler, 2007). Therefore, legitimacy could not be sought on this ground either. The ground taken by the Coalition itself, which is that Resolution 678 allowed such action is also suspect because the Security Council in itself did not agree with this position which is demonstrated by the fact that the majority of the members refused to agree that the resolution from 1990 allowed action in 2003 (Morris & Wheeler, 2007).

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To conclude, the action taken by the US, UK, and Australian armed forces in Iraq in 2003 is not legitimate under the international law. It is an action that involves use of force which is prohibited under Article 2(4) of the UN Charter. Such force is not justified in self-defence because there was no actual or imminent armed attack. Therefore, there is no legitimate ground made out in self-defence law for the action against Iraq. The justification given by the coalition in the applicability of Resolution 678 is also suspect because the majority of the Security Council did not agree with such an interpretation of the 1990 resolution. Therefore, the legitimacy of the action in Iraq in 2003 is one of the areas where the action of the coalition are not able to be justified on any of the grounds that authorise such action.

Bibliography

Brown, B., 2012. United States and The Politicization of the World Bank, Issues of International Law and Policy. Oxon: Routledge.

Cassese, A., 2005. International Law. Oxford: OUP.

Jennings, R. Y., 1938. The Caroline and McLeod Cases. American Journal of International Law, Volume 32 , p. 82.

Morris, J. & Wheeler, N. J., 2007. The Security Council's crisis of legitimacy and the use of force. International Politics, 44(2), pp. 214-231.

Murphy, S. D., 2003 . Assessing the legality of invading Iraq. Geo. lJ , Volume 92, p. 17.

Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226 (July 8), and Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27)

Ramirez, J. A., 2003. Iraq War: Anticipatory Self-Defense or Unlawful Unilateralism. Cal. W. Int'l LJ , Volume 34 , p. 1.


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